30 Questions
What is the approach to customary international law in the UK and the Commonwealth?
Doctrine of incorporation
In which countries do national courts tend to find harmonization between international law and internal law?
Most Western European countries
What happens when a new statute is introduced in a country that follows the doctrine of incorporation?
The new statute repeals the existing nationalised international law statute
What is the role of national courts in relation to customary international law?
They enforce customary international law as part of the law of the land
What is the principle that guides national courts in their interpretation of international law?
Principle of friendliness to international law
What is the relationship between customary international law and statutory domestic law in most Western European countries?
Customary international law takes priority over conflicting rules of statutory domestic law
What was the issue in the CAMEROON v. NIGERIA case regarding the Maroua Declaration of 1975?
The declaration was not ratified
What does article 7(2) of the Vienna Convention provide?
Heads of state are considered to be representing their state without having to produce full powers
Is there a general legal obligation for states to keep themselves informed of legislative and constitutional developments in other states?
No, there is no general legal obligation
What is the general duty of states regarding international law?
To bring domestic law into conformity with international law
How do states decide to translate their international obligations into internal law?
According to their domestic jurisdiction
What is the prevailing approach to international law in national legal systems?
Dualist
What is the main issue that affects the effectiveness of international law?
The criteria adopted by national legal systems
Why do most states not give primacy to international law over their own municipal law?
Because they want to emphasize their sovereignty
What is one way municipal law may be used in international law?
As evidence of international custom
What is the fundamental principle of international law?
International law prevails over domestic law
What is the general rule of international law regarding a state's municipal law?
A state cannot plead a rule of its own municipal law as a defense
Who has the power to make or ratify treaties in the United Kingdom?
The Queen on the advice of the Prime Minister
What is the Ponsonby Rule in the context of treaties?
A constitutional convention that requires the Executive to wait for 21 parliamentary days before ratifying a treaty
What is the purpose of Article 27 of the Vienna Convention on the Law of Treaties?
To prevent states from invoking their internal law as justification for not performing a treaty
What happens if a treaty requires changes in English law but the necessary Act of Parliament is not passed?
The treaty is binding on the United Kingdom, but only from an international perspective
What is the exception to Article 46(1) of the Vienna Convention on the Law of Treaties?
If the violation of internal law was manifest and concerned a rule of fundamental importance
What was the issue in the Alabama Claims arbitration of 1872?
A dispute over the violation of international law by Britain
What is the approach of English courts when dealing with conflicts between Acts of Parliament and earlier treaties?
They try to interpret Acts of Parliament so that they do not conflict with earlier treaties
What is the difference between monist and dualist countries in terms of treaty effect?
Monist countries automatically incorporate treaties into their municipal law, while dualist countries do not
What is the purpose of Rule 1 in international law?
To determine the nationality of an individual
What is the status of treaties in countries following the legal traditions of continental Europe?
Treaties enjoy the same status as national statutes
What is the relationship between international law and municipal law?
International law occasionally considers municipal law in certain circumstances
What happens if an Act of Parliament giving effect to a treaty is repealed by a subsequent Act of Parliament?
The treaty remains binding, but only from an international perspective
What is the significance of the Free Zones case in international law?
It established the principle that a state cannot plead a rule of its own municipal law as a defense
Study Notes
International Law and Municipal Law
- International law does not entirely ignore municipal law
- Municipal law can be used as evidence of international custom or general principles of law
- International law leaves certain questions to be decided by municipal law
Rule 1: State Cannot Plead Municipal Law as Defence
- A state cannot plead a rule of or a gap in its own municipal law as a defence to a claim based on international law
- Example: Free Zones case, Permanent Court of International Justice
- Similarly, Article 27 of the Vienna Convention on the Law of Treaties states that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty
- Exceptions: Article 46(1) of the Vienna Convention, if the violation of internal law was "manifest and concerned a rule of fundamental importance"
Rule 2: Duty to Bring Domestic Law into Conformity with International Law
- There is a general duty for states to bring domestic law into conformity with obligations under international law
- States are required to perform their international obligations in good faith
- International law leaves the method of achieving this result to the domestic jurisdiction of states
Attitude of National Legal Systems to International Law
- Most states do not give primacy to international law over their own municipal law
- The prevailing approach in practice appears to be dualist
- The International Court has underlined the fundamental principle of international law that international law prevails over domestic law
Priority
- In the United Kingdom, the power to make or ratify treaties belongs to the Queen on the advice of the Prime Minister, a Minister of the Crown, an Ambassador or other officials
- Treaties require an Act of Parliament to bring English law into conformity with the treaty
Effect of International Law in National Legal Systems
- For England and many common law countries, there is a clear difference between the effects of a treaty in international law and the effects of a treaty in municipal law
- For monists like the United States, treaties ratified in accordance with the Constitution automatically become part of the municipal law of the United States
- For dualists, national law prevails until international law is ratified
Treaties
- In the United States and in those countries following the legal traditions of continental Europe, treaties enjoy the same status as national statutes
- Treaties can repeal any existing law and a new statute will also repeal the nationalised international law statute
- Some constitutions make treaties superior to ordinary national legislation and subordinate law, but rarely superior to constitutional law
Customary International Law
- Doctrine of incorporation: CIL automatically becomes part of national law
- Doctrine of transformation: CIL must be transformed into national law by statute, etc.
- Rules for the recognition of customary international law in the internal sphere are either laid down in advance in the constitution or are gradually formulated by the national courts
- In USA, UK and the Commonwealth, customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decisions of final authority.
Quiz on the relationship between international law and municipal law, including the use of municipal law as evidence and international law's deference to municipal law on certain questions.
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